There is good news and bad news about alimony in today’s world. The good news is that it has gotten easier to predict one’s chances of success in making a claim. The bad news – in Florida (and across the nation) there is an increasing movement in state legislatures to do away with the stipend in all but the most exceptional cases. The reason why is simple. Partners in marriage are more than ever before on equal footing in terms of education and ability to work, and while there are circumstances that may qualify a spouse for support, the emphasis on mitigation of one’s own need has become a very popular concept.
There are three effective prongs to alimony – entitlement, need, and ability to pay. You need all three of these to qualify for support.
ENTITLEMENT TO ALIMONY
By law, the Court has to assess a handful of “factors” in assessing “entitlement” to any type of alimony (excepting temporary support, which does not have to undergo this analysis). These factors include:
- The standard of living established during the marriage. The “standard of living” enjoyed by the parties during marriage is the lifestyle and status they maintained or were capable of maintaining from their own resources.[1] The standard of living is not dispositive in the final award, it is merely a factor that must be considered, and it is not always reliable. For example, if the spouses spent beyond their means during the marriage, their marital standard of living is not a useful guide in determining alimony.[2] Because a permanent alimony award is generally inappropriate in a case involving a short-term marriage unless the dissolution creates a genuine inequity, the standard of living of the parties is considerably less important in deciding whether to award alimony than it would be if the marriage had been long-term.[3]
- The duration of the marriage: Florida Statutes §61.08(4) defines the length of a marriage as the date of marriage until the date of filing. Short term marriages are those less than 7 years. They carry no presumption for entitlement to permanent periodic alimony. According to Florida Statutes § 61.08(8), the Court must make written findings of exceptional circumstances to award permanent alimony in a short term marriage. Moderate term marriages are those greater than 7 years but less than 17 years. There is no presumption for or against a permanent alimony award to a moderate marriage, and the requesting party must pitch the weight of the totality of alimony factors to his or her favor to be found entitled to “permanent” support.[4] According to Florida Statutes § 61.08(8), the standard is “clear and convincing evidence.” Failure to meet this standard means that a permanent entitlement could be deemed “inappropriate” and the durational option would apply instead. Long term marriages are those 17 years or greater. Long term marriages have a presumption for permanent periodic entitlement. In order not to award support in such cases, the Court must explain how the totality of factors (i.e. the facts and circumstances of the marriage) might rebut the presumption. Additionally, a long term marriage might be assigned “durational” rather than “permanent” alimony support if there is no ongoing need for support on a permanent basis. See Florida Statutes §61.08(7).
- The age and the physical and emotional condition of each party
- The financial resources of each party, and the non-marital and the marital assets and liabilities distributed to each
- The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment. In the context of alimony (note: child support is a different standard), the trial court has broad discretion as to whether to impute income to a spouse, and if so, what amount to impute.[5] “Imputed income” is effectively a prediction of a spouse’s true earnings ability based upon his or her education, skills, and work experience. It is applied if the evidence suggests that a party would be capable of earning more that he or she reports on his financial affidavit by the use of his or her best efforts.[6] However, the Court may impute income only if the party has chosen to earn less than he or she is capable of earning and has the ability to remedy the situation.[7]
- The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party
- The responsibilities each party will have with regard to any minor children they have in common
- The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.
- All sources of income available to either party, including income available to either party through investments of any asset held by that party.
- Other factors necessary to do equity and justice between the parties: Fault or misconduct on the part of a spouse who seeks an award of alimony may limit the award; that is, it is proper for a court to refuse to permit an errant spouse to destroy his or her marriage by having an affair and then to claim benefits equal to those that would have been provided had the marriage remained intact.[8] Though Florida is a no-fault divorce state, this is one of the two ways that an affair might become relevant to the proceedings (the other being where there is an allegation of wasted assets). Caution, however, as this is only one of the ten necessary entitlement factors, and will not, by itself, obviate a spouse’s entitlement.
NEED AND ABIILITY TO PAY
Entitlement to alimony based upon the totality of the statutory factors noted above is but one piece of the puzzle, since along with the factors the Court must also consider need and ability.[9] It is possible for a requesting party to have entitlement, but no need, or need and entitlement, but no ability to pay. In addition, Florida Statute § 61.08(9) requires that “the award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances.”
Ability to pay is where most alimony cases are lost. Typically there is no trouble setting up the entitlement or need factors, the trouble comes in ability, since in most middle class families it is a question of simple math – i.e. that paycheck which successfully supported a lifestyle in the marriage cannot thereafter be divided in two and be expected to sustain each party in an independent household.
Need and ability to pay will be determined by the financial affidavits and testimony and evidence regarding the parties household needs and overall financial resources – both non-marital and those which are anticipated to be divided in the divorce.
It is vital to point out that the Court is not required to equalize the financial position of the parties to a dissolution proceeding.[10] This means that you should not immediately expect a 50% divide of a party’s paycheck if you are claiming need for support. In addition, unlike child support (which has a worksheet and statutory minimum) alimony amounts are set at the discretion of the Court, and its award will not be disturbed on appeal but for a showing of unreasonableness.[11]
TYPES OF ALIMONY
Temporary Alimony: Temporary support is intended to provide alimony to a needy spouse during the pending dissolution (i.e. while the parties are still legally married). For the purpose of this article it is not discussed here.
Rehabilitative Alimony: The principal purpose of rehabilitative alimony establish the capacity for self-support of the receiving spouse, either through the redevelopment of previous skills, or provision of the training necessary to develop those abilities.[12] Florida Statutes § 61.08(6)(b) requires that the requesting spouse present a “specific and defined plan” for rehabilitation that must be made part of the final judgment (i.e., if going back to school the name of the school, how long it will take to complete the program, what the program will cost, likelihood of admission, etc.). If you fail to present a plan (as most people do) then the relief will be denied. An award of rehabilitative alimony may be modified or terminated based upon a substantial change in circumstances, upon noncompliance with the rehabilitative plan, or upon completion of the rehabilitative plan.[13]
Bridge the Gap Alimony: Bridge-the-gap alimony is designed to assist a party with legitimate identifiable short-term needs, and the length of an award may not exceed 2 years.[14] An award of bridge-the-gap alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony and shall not be modifiable in amount or duration.[15]
Permanent Periodic Alimony: “Permanent” alimony, as noted in the entitlement factors, above, will generally apply in the rarest of circumstances and is typically awarded (these days) to long-term marriages of 17 years plus. An award of permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. The award may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship as described by Florida Statutes § 61.14.[16]
Durational Alimony: A party who qualifies for alimony entitlement under the factors but is in a moderate or lesser marriage will most likely be awarded “durational” support. Entitlement to durational support shall not exceed the length of the parties’ marriage,[17] but is not necessarily required to last that long – it is in the Court’s discretion to set the duration term based upon the testimony and evidence. Termination conditions are similar to permanent with the additional provisos: The amount of an award of durational alimony may be modified or terminated; however, the length of the award may not be modified except under exceptional circumstances.[18]
A Note About Lump Sum Alimony. Lump sum alimony is not its own type of alimony; rather, it is a form of payment. “Ability to pay” in the context of lump-sum alimony means that the payor spouse is capable of making a lump-sum payment (or installment toward a lump sum[19]) without substantially endangering his or her economic status.[20] Lump sum alimony is typically intertwined with equitable distribution of assets.
As you can see, the question of entitlement to alimony is not a simple one to answer or predict. Be wary of any lawyer who claims the ability to quote you a dollar figure, as there are simply too many variables that the court must consider aside from mere math.
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